There may be a time when a client wants to speak directly with the other side simply hoping to move the process forward. Truth be told, I’ve been there as a client. It felt as if my legal matter wasn’t progressing as fast as I thought it should and it seemed to me that the attorneys were the ones getting in the way. I started to wonder if I couldn’t move things along by just having a one on one with the other side. If I happened to be your client and came to you saying that I’d like to put all the lawyers on the sidelines temporarily in order to have a face-to-face sit down with the adverse party at some neutral place so we can finally settle this thing, how would you respond? Now understand that after an agreement is reached, the plan would be to have the attorneys reenter the picture in order to do whatever needs to be done to wrap the matter up. There is no desire to terminate the representation, in other words. It’s just a slight change to the game plan.
Some attorneys may say, hey I really like this idea and here’s what I want you to do. This is the response I’d like to tackle first. Remember that Rule 4.2 of our Rules of Professional Conduct will almost always prohibit you from communicating directly with an adverse party that is represented by another lawyer. Of course, it’s your client and not you who’s wanting to communicate directly with the other side, so what’s the problem? Yes, absent a protective order or other injunction making it unlawful, your client is free do so but only as long as it’s on their own accord and that’s key.
So, don’t play games should you ever find yourself in this situation! Rule 8.4 Misconduct does not allow you to make a communication through the acts of another that would otherwise be prohibited by the rules. In other words, you cannot use your client as your agent or conduit in delivering messages, advice, or information to the other side, nor can you use your client as a tool to elicit information. Does this mean you must have no involvement at all? Not necessarily. ABA Formal Opinion 11-461 (August 4, 2011) provides some guidance. Here’s the bottom-line. While you cannot mastermind or script out the conversation you would like to have occur, you can advise your client by perhaps identifying the general issues or topics that should be discussed or suggesting an overall strategy to be employed. As I see it, if your client is set on having a direct communication with the other side, your client is best served by having you at least share your legal advice on how to make sure the conversation/negotiation has the best chance of moving things forward.
Of course, there’s a flip side here. What if, in your professional judgement, your response is not one of liking the idea, but of thinking it’s a bad idea. Some may even simply want to wash their hands of the whole thing, viewing the situation as a personal affront. Regardless, you are in the role of attorney and that has ramifications. The duty of competency would seem to dictate that just as you should advise a client about how to make sure the conversation has the best chance of moving things forward, you should also consider and caution your client about any legal downsides that might result from wanting to negotiate directly with the other side. Might opposing counsel see the effort as a sign of weakness and frustration giving opposing counsel the opportunity to play a waiting game? Could be.
A prudent attorney is going to think about the client’s true understanding of the issues, ability to keep emotions in check, and overall communication skills. Then he’ll think about how the adverse party and attorney might respond to the desire to negotiate directly. Yes, some clients may not want to hear what needs to be said; but your ethical obligations under Rule 1.4 Communication are not limited to sharing only the things your client wants to hear. Look at it this way. If you fail to advise on at least the basics of how this could go south, if and when it does, your client is going to point the finger of responsibility directly at you and say “why didn’t you tell me that could happen. I would never have had the conversation if I had only known.”
Yes, you will never be able to prevent your clients from ever thinking they can do better. It’s going to happen. If and when it does and then is followed up upon with a proposed change to the game plan, remember your role and act accordingly. Keeping in mind the constraints of our Rules of Professional Conduct, advise this client about the legal pros and cons thereby giving them the ability to make an informed decision regarding the course of representation. They may or may not take your advice, but at least you’ve done what you have been hired to do and are obligated to do. Finally, don’t forget to document that advice. Otherwise, your just inviting trouble through the backdoor.
All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.